On March 18, three advocacy organizations and their members filed a lawsuit challenging an offshore wind project against the National Marine Fisheries Service (NMFS) and the Bureau of Ocean Energy Management (BOEM). The lawsuit alleges that the Biological Opinion (BiOp) issued by NMFS for Dominion Energy’s Coastal Virginia Offshore Wind (CVOW) project violates the Endangered Species Act (ESA) and the Administrative Procedure Act (APA) because it fails to adequately analyze the project's impacts on the endangered North Atlantic right whale (Eubalaena glacialis).

The lawsuit asserts claims that were identified in a November 11, 2023 notice of intent to sue submitted to NMFS and BOEM by two of the five plaintiffs, previously discussed in this blog. They include allegations that:

• The BiOp only analyzes impacts to the right whale from the CVOW project and the CVOW project area, and does not assess cumulative impacts to the right whale from all offshore wind development planned along the East Coast and from additional incidental harassment authorizations issued to other offshore wind projects;
• The BiOp did not wait for the results of ongoing studies of baleen whale hearing capabilities scheduled to be completed in 2025, and therefore was not based on the “best scientific information available”;
• The proposed mitigation measures in the BiOp will not adequately protect the right whale from vessel strikes associated with the CVOW project, and noise from the project will force right whales into areas with higher shipping activity;
• The BiOp does not address the possible effects of CVOW and other offshore wind projects on the distribution of the right whale’s prey; and
• The BiOp does not adequately ensure that mitigation measures will prevent “Level A” harassment of right whales (defined in the Marine Mammal Protection Act (MMPA) as harassment that has the potential to injure a marine mammal or marine mammal stock in the wild) during pile driving.

The lawsuit seeks a judgment setting aside the BiOp and all other federal approvals for the project that relied upon it, including incidental take or harassment authorizations under the ESA and the MMPA, and an injunction prohibiting construction of the CVOW project. However, the lawsuit does not challenge the adequacy of the Final Environmental Impact Statement for CVOW, which BOEM completed on September 29, 2023.

In addition to the Committee for a Constructive Tomorrow (CFACT) and the Heartland Institute (the two parties that submitted the November 2023 notice letter), the suit also names as plaintiffs the Founder and President of CFACT, Craig Rucker, as well as another organization, the National Legal and Policy Center (NLPC) and its Chairman, Peter Flaherty, none of whom were identified in the November notice letter. NLPC and Flaherty submitted a notice of intent to sue to NMFS and BOEM on March 7, 2024. 

This is the latest of several lawsuits seeking to overturn federal approvals for offshore wind projects based on alleged impacts to the North Atlantic right whale. As previously discussed on this blog last month, a federal court in New Jersey recently dismissed an ESA challenge to NMFS’ approval of eleven incidental take authorizations for offshore wind projects in Save Long Beach Island v. U.S. Department of Commerce (SLBI). SLBI relied upon similar allegations to those in the lawsuit against the CVOW project, and the Court found that the plaintiffs lacked standing to sue because they had only alleged concerns about offshore wind development.

And last year, a federal court in Massachusetts rejected similar challenges to the federal approvals for the Vineyard Wind project under the ESA, MMPA, and National Environmental Policy Act (NEPA) in the case of Seafreeze Shoreside v. Department of Interior, finding that the plaintiff fishing industry associations lacked standing to assert their claims because they had not demonstrated an injury connected to the project’s asserted impacts on the right whale and were not within the “zone of interests” protected by NEPA and the MMPA. In an earlier opinion in Nantucket Residents Against Turbines v. Department of Interior, litigated by the same attorneys who signed the November 13 notice letter and the March 18 complaint, the same Massachusetts federal court rejected ESA and NEPA challenges to the EIS and BiOp for Vineyard Wind. The plaintiffs in Nantucket Residents Against Turbines based their ESA and NEPA claims on similar allegations about the wind project’s impact to the right whale as those made in the November 13 notice letter.

Seafreeze Shoreside and Nantucket Residents Against Turbines are currently being appealed. If the district court’s decisions in those cases are upheld, the lawsuit against the CVOW project may find those cases and SLBI difficult precedent to overcome.